09:0804(101)CU - VA, Regional Office, Portland, OR and NFFE Local 1974; VA, Regional Office, Portland, OR and NFFE Local 1974 -- 1982 FLRAdec RP

 9 FLRA No. 101
 
 VETERANS ADMINISTRATION,
 REGIONAL OFFICE,
 PORTLAND, OREGON
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1974
 Labor Organization/Petitioner
 
                                            Case No. 9-CU-30
 
 VETERANS ADMINISTRATION,
 REGIONAL OFFICE,
 PORTLAND, OREGON
 Activity/Petitioner
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1974
 Labor Organization
 
                                            Case No. 9-CU-33
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON PETITIONS DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
 OFFICER OF THE AUTHORITY.  THE HEARING OFFICER'S RULINGS MADE AT THE
 HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THESE CASES, THE AUTHORITY FINDS:  THE
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1974 (THE UNION) SEEKS
 TO CLARIFY ITS EXISTING CERTIFIED UNIT /1/ BY INCLUDING INCUMBENTS IN
 VARIOUS JOB CLASSIFICATIONS, AND THE VETERANS ADMINISTRATION, REGIONAL
 OFFICE, PORTLAND, OREGON (THE ACTIVITY) SEEKS TO CLARIFY THE UNIT BY
 EXCLUDING THE INCUMBENTS IN THESE CLASSIFICATIONS ON THE BASIS THAT THEY
 ARE EITHER PROFESSIONAL EMPLOYEES, SUPERVISORS OR A CONFIDENTIAL
 EMPLOYEE AND/OR AN EMPLOYEE ENGAGED IN PERSONNEL WORK IN OTHER THAN A
 PURELY CLERICAL CAPACITY.
 
    PROFESSIONAL EMPLOYEES /2/
 
    VOCATIONAL REHABILITATION SPECIALIST, GS-1715-11
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THIS JOB CLASSIFICATION,
 WHOSE DUTIES AND RESPONSIBILITIES REQUIRE NO LESS THAN A COLLEGE DEGREE
 PLUS EITHER A MASTER'S DEGREE IN REHABILITATION COUNSELING OR A RELATED
 FIELD OR ONE YEAR'S EXPERIENCE AS A VOCATIONAL REHABILITATION SPECIALIST
 (VRS) AND 18 SEMESTER HOURS BEYOND THE BACCALAUREATE DEGREE, AND
 ADDITIONALLY REQUIRE THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT
 IN DETERMINING WHICH EMPLOYEES NEED REHABILITATION AND THE EXTENT OF
 THAT CONTINUED NEED, ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF
 SECTION 1703(A)(15) OF THE STATUTE.  /3/ ACCORDINGLY, THE AUTHORITY
 SHALL EXCLUDE THE INCUMBENTS IN THIS CLASSIFICATION FROM THE BARGAINING
 UNIT.
 
    MEDICAL OFFICER (DISABILITY EVALUATION), GS-602-12
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THIS JOB CLASSIFICATION
 ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(15) OF
 THE STATUTE.  THE INCUMBENTS MUST HAVE ATTAINED THE DEGREE OF DOCTOR OF
 MEDICINE FROM A MEDICAL SCHOOL APPROVED BY THE COUNCIL ON MEDICAL
 EDUCATION AND HOSPITALS, AMERICAN MEDICAL ASSOCIATION, OR A COMPARABLE
 AND EQUIVALENT DEGREE, AND ALSO MUST HAVE SUCCESSFULLY COMPLETED AT
 LEAST ONE YEAR OF APPROVED RESIDENCY TRAINING.  THEIR DUTIES INCLUDE
 MAKING DETERMINATIONS WITH REGARD TO APPLICANTS' BASIC ELIGIBILITY FOR
 DISABILITY COMPENSATION, THE ADEQUACY AND SUFFICIENCY OF ALL PERTINENT
 FACTS BEARING ON THE PERFORMANCE OF PHYSICAL EXAMINATIONS.  IN THESE
 CIRCUMSTANCES, THE AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THIS
 CLASSIFICATION BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.
 
    SUPERVISORS /4/
 
    SECTION CHIEFS, LOAN GUARANTEE DIVISION:  CHIEF, CONSTRUCTION AND
 VALUATION SECTION, GS-1171-12;  CHIEF, LOAN SERVICING, CLAIMS AND
 PROPERTY MANAGEMENT SECTION (REALTY SPECIALIST), GS-1170-11;  AND CHIEF,
 LOAN PROCESSING SECTION (SUPERVISORY LOAN SPECIALIST/REALTY), GS-1165-11
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THESE POSITIONS ARE
 SUPERVISORS WITHIN THE MEANING OF THE STATUTE.  ALL THREE ARE IN CHARGE
 OF AT LEAST ONE SUBORDINATE EMPLOYEE, ESTABLISH THE PRIORITY OF THEIR
 WORK, ASSIGN AND REVIEW THEIR WORK, COUNSEL THEM, GRANT THEIR LEAVE,
 HAVE SELECTED SUCCESSFUL CANDIDATES AMONG THOSE ELIGIBLE FOR POSITIONS
 UNDER THEIR DIRECTION, AND HAVE MADE EFFECTIVE RECOMMENDATIONS WITH
 REGARD TO PROMOTIONS OR INCREASES IN PAY FOR SUBORDINATES.  ALL HAVE
 CONSISTENTLY EXERCISED INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE
 AND, THEREFORE, ARE SUPERVISORS WITHIN THE MEANING OF SECTION
 7103(A)(10) OF THE STATUTE.  ACCORDINGLY, THE AUTHORITY SHALL EXCLUDE
 THEM FROM THE BARGAINING UNIT.
 
    THE CONFIDENTIAL EMPLOYEE /5/
 
    THE INCUMBENT IN THE POSITION OF PERSONNEL CLERK (TYPING), PERSONNEL
 DIVISION, GS-203-5, IS THE PRINCIPAL CLERICAL ASSISTANT TO THE PERSONNEL
 OFFICER WHO IS ALSO THE LABOR RELATIONS OFFICER IN CHARGE OF ALL THE
 ACTIVITY'S LABOR RELATIONS;  WHO IS DIRECTLY INVOLVED IN THE DAILY
 UNION/MANAGEMENT ACTIVITIES WITH REGARD TO GRIEVANCES, APPEALS AND
 COMPLAINTS;  AND WHO IS THE PRINCIPAL MEMBER OF THE MANAGEMENT TEAM THAT
 WAS INVOLVED IN CONTRACT NEGOTIATIONS WITH THE UNION AT THE TIME OF THE
 INSTANT HEARING.  THE INCUMBENT IS PRIVY TO, AND TYPES AND MAINTAINS
 MATERIALS WITH REGARD TO, CONFIDENTIAL LABOR RELATIONS MATTERS.
 
    THE AUTHORITY CONCLUDES THAT THE INCUMBENT ACTS IN A CONFIDENTIAL
 CAPACITY TO AN OFFICIAL INVOLVED IN THE FORMULATION AND EFFECTUATION OF
 THE ACTIVITY'S LABOR RELATIONS POLICIES AND, ACCORDINGLY, SHALL EXCLUDE
 HERE FROM THE BARGAINING UNIT.  U.S. ARMY COMMUNICATIONS SYSTEMS AGENCY,
 FORT MONMOUTH, NEW JERSEY, 4 FLRA NO. 83(1980).  /6/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, CONSISTING
 OF ALL NONPROFESSIONAL EMPLOYEES OF THE VETERANS ADMINISTRATION REGIONAL
 OFFICE, PORTLAND, OREGON, FOR WHICH THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1974, WAS ORIGINALLY CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE ON MAY 2, 1980, BE, AND IT HEREBY IS, CLARIFIED BY
 EXCLUDING THE POSITIONS OF:  MEDICAL OFFICER (DISABILITY EVALUATION),
 GS-602-12;  VOCATIONAL REHABILITATION SPECIALIST, GS-1715-11;  CHIEF,
 CONSTRUCTION AND VALUATION SECTION, GS-1171-12;  CHIEF, LOAN SERVICING,
 CLAIMS AND PROPERTY MANAGEMENT SECTION (REALTY SPECIALIST), GS-1170-11;
 CHIEF, LOAN PROCESSING SECTION (SUPERVISORY LOAN SPECIALIST/REALTY),
 GS-1165-11;  AND PERSONNEL CLERK (TYPING), PERSONNEL DIVISION, GS-203-5.
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE LABOR ORGANIZATION WAS CERTIFIED ON MAY 2, 1980, AS THE
 EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF:  ALL NONPROFESSIONAL
 EMPLOYEES OF THE VETERANS ADMINISTRATION REGIONAL OFFICE, PORTLAND,
 OREGON, EXCLUDING ALL PROFESSIONAL EMPLOYEES;  MANAGEMENT OFFICIALS,
 SUPERVISORS;  AND EMPLOYEES DESCRIBED IN 5USC 7112(B)(2), (3), (4), (6)
 AND (7).
 
    /2/ SECTION 7103(A)(15) OF THE STATUTE PROVIDES:
 
    (15) "PROFESSIONAL EMPLOYEE" MEANS--
 
    (A) AN EMPLOYEE ENGAGED IN THE PERFORMANCE OF WORK--
 
    (I) REQUIRING KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD OF SCIENCE OR
 LEARNING CUSTOMARILY
 
    ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL
 INSTRUCTION AND STUDY IN AN
 
    INSTITUTION OF HIGHER LEARNING OR A HOSPITAL (AS DISTINGUISHED FROM
 KNOWLEDGE ACQUIRED BY A
 
    GENERAL ACADEMIC EDUCATION, OR FROM AN APPRENTICESHIP, OR FROM
 TRAINING IN THE PERFORMANCE OF
 
    ROUTINE MENTAL, MANUAL, MECHANICAL, OR PHYSICAL ACTIVITIES);
 
    (II) REQUIRING THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT IN
 ITS PERFORMANCE;
 
    (III) WHICH IS PREDOMINANTLY INTELLECTUAL AND VARIED IN CHARACTER (AS
 DISTINGUISHED FROM
 
    ROUTINE MENTAL, MANUAL, MECHANICAL, OR PHYSICAL WORK);  AND
 
    (IV) WHICH IS OF SUCH CHARACTER THAT THE OUTPUT PRODUCED OR THE
 RESULT ACCOMPLISHED BY SUCH
 
    WORK CANNOT BE STANDARDIZED IN RELATION TO A GIVEN PERIOD OF TIME;
 OR
 
    (B) AN EMPLOYEE WHO HAS COMPLETED THE COURSES OF SPECIALIZED
 INTELLECTUAL INSTRUCTION AND
 
    STUDY DESCRIBED IN SUBPARAGRAPH (A)(I) OF THIS PARAGRAPH AND IS
 PERFORMING RELATED WORK UNDER
 
    APPROPRIATE DISCRETION OR GUIDANCE TO QUALIFY THE EMPLOYEE AS A
 PROFESSIONAL EMPLOYEE
 
    DESCRIBED IN SUBPARAGRAPH (A) OF THIS PARAGRAPH(.)
 
    /3/ CF. DEFENSE MAPPING AGENCY, INTER-AMERICAN GEODETIC SURVEY, 5
 FLRA NO. 85(1981) (INCUMBENTS IN THE JOB OF INTERPRETER, FOR WHICH A
 COLLEGE DEGREE IS NOT REQUIRED, HELD NOT TO BE "PROFESSIONAL EMPLOYEES"
 WITHIN THE MEANING OF SECTION 7103(A)(15)(A)(I) OF THE STATUTE).
 
    /4/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
 
    . . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
 INTEREST OF THE AGENCY TO
 
    HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
 RECALL, SUSPEND,
 
    DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
 EFFECTIVELY RECOMMEND SUCH
 
    ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
 CLERICAL IN NATURE BUT
 
    REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT(.)
 
    /5/ SECTION 7103(A)(13) OF THE STATUTE DEFINES A "CONFIDENTIAL
 EMPLOYEE" AS:
 
    . . . AN EMPLOYEE WHO ACTS IN A CONFIDENTIAL CAPACITY WITH RESPECT TO
 AN INDIVIDUAL WHO
 
    FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF
 LABOR-MANAGEMENT RELATIONS(.)
 
    /6/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
 PASS UPON THE ACTIVITY'S FURTHER CONTENTION THAT THE INCUMBENT OF THIS
 POSITION IS ALSO AN EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
 THAN A PURELY CLERICAL CAPACITY.